Nebraska Law Sets Limits on Abortion

MONICA DAVEY

Wednesday

Apr 14, 2010 at 12:01 AMApr 15, 2010 at 5:12 AM

Proponents of the new law say they want to spare fetuses pain. Critics think the goal is to set up a challenge to Roe v. Wade.

Gov. Dave Heineman of Nebraska signed a law on Tuesday banning most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain. The law, which appears nearly certain to set off legal and scientific debates, is the first in the nation to restrict abortions on the basis of fetal pain.

Abortion opponents praised the law and said it was justified by medical evidence gained since Roe v. Wade was decided in 1973. Abortion rights advocates said that the measure was unconstitutional, and that the motive behind it was to set off a challenge to legalized abortion before the United States Supreme Court.

The Nebraska law grew out of a battle over abortion waged in a far different forum. After an abortion opponent killed Dr. George R. Tiller, a leading late-term abortion provider in Wichita, Kan., last year, Dr. LeRoy H. Carhart, who sometimes worked with Dr. Tiller, said he would carry on his legacy by performing some later-term abortions in his clinic in Bellevue, Neb.

Lawmakers in Nebraska were outraged at the prospect of becoming, in the words of one of the state’s leading anti-abortion groups, the next “late-term abortion capital of the Midwest.” Early Tuesday, the state’s nonpartisan unicameral legislature passed the new measure overwhelmingly, 44 to 5.

“I didn’t find this bill,” Mike Flood, the legislature’s speaker said, alluding to Dr. Carhart. “It found Nebraska.” Dr. Carhart could not be reached for comment.

The law, which is to take effect Oct. 15, restricts abortion in Nebraska on several fronts. It will forbid abortions after 20 weeks’ gestation. The law it replaces, similar to those in many other states, banned abortions after a fetus reaches viability, or can survive outside the womb. This is determined case by case but is generally considered to come around 22 weeks at the earliest.

The new law grants exceptions only in cases of medical emergency, the pregnant woman’s imminent death, or a serious risk of “substantial and irreversible physical impairment of a major bodily function,” a provision experts interpreted as an effort to exclude an exception based on a woman’s mental health.

Nancy Northup, president of the Center for Reproductive Rights, said abortion rights supporters were considering all options, including legal challenges to the law.

“If some of these other anti-abortion bills have been chipping away at Roe v. Wade, this takes an ax to it,” Ms. Northup said.

What is perhaps most notable about the law is that it takes aim at abortions from an utterly different perspective — the possibility of fetal pain — than states have tried historically, said officials at the Guttmacher Institute, a nonprofit research organization that focuses on reproductive health and rights.

In some states that mandate counseling for women considering abortions, the women are told of a possibility that fetuses may have the capacity to feel pain. But no other state cites that possibility as part of a law restricting abortions.

The question of fetal pain, experts said, is one of intense, unresolved debate among researchers and among advocates on both sides of the abortion question.

Mary Spaulding Balch, director of state legislation at National Right to Life, said that scientific evidence related to the capacity for pain had not been heard by the Supreme Court, and that it opened a new legal question.

“You need five votes,” Ms. Balch said. “I think there are five on the current Supreme Court who would give serious consideration to Nebraska’s claim.”

As part of the same bill-signing ceremony Tuesday, Governor Heineman, a Republican, signed a separate law requiring health care providers to screen women seeking abortions for possible physical or mental risks.

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